It was ironic that Sarah Owen MP opened her public questioning of the Equality and Human Rights Commission (EHRC) chair by telling the public that the Women and Equalities Committee prided itself on “listening, understanding and challenging respectfully to find progress on the matters we hold dear”. Over the two-and-a-bit hours that followed, there was little respect shown and not much listening going on at all.
The hostile tone was set from the start. What was Baroness Kishwer Falkner going to do to improve the damaged reputation and loss of public trust in the EHRC, Owen asked in the session on Wednesday (11 June). Falkner responded: “it’s a real pleasure to be here… I don’t think I could agree with your characterisation of the EHRC, and I hope as the time goes on in the next two hours that I will be able to prove those sentiments with hard facts.” Then the facts came: rather than trust being damaged, Falkner argued, it had rocketed under her leadership from just 35 per cent of the public holding the EHRC in a positive light when she assumed her role in 2020 to 81 per cent now.
The Women and Equalities Committee, of which Owen is chair, has regular sessions with the leaders of the EHRC. This particular meeting comes after the Supreme Court’s judgment in April that sex in the Equality Act 2010 meant biological sex. Predictably the judgment and the EHRC’s response to it dominated proceedings. But few MPs seemed to understand what the judgment actually meant, let alone what the law is.
“Please do not be fearful,” Baroness Falkner said, explaining that in spite of the ruling, trans people are still able to invoke the provisions on direct discrimination, harassment, and indirect discrimination. They had not lost any rights, she insisted, as had the Supreme Court justices. It took more than 45 minutes for the Women and Equalities Committee to mention “women and girls”. That was left to Conservative MP Rebecca Paul, who, with Rosie Duffield, sat physically apart from and in stark contrast to the rest of the committee.
“You said trans people have not lost a right, but they have,” Catherine Fookes, Labour MP for Monmouthshire, responded. “They’ve lost the right to use the toilet of their choice.”
“I think we have a slight danger here of shooting the messenger”, Baroness Falkner replied, explaining to the committee that in fact that “right” had never existed in law. “The Equality Act has always had exemptions for separate and single-sex spaces” and that these “limited people to using only those facilities of their biology.”
“Whose rights win?” Sarah Owen asked, trans people or women? “Trans people’ rights are not going to change,” Falkner explained again. “Women haven’t won new rights. What has happened here is that a statute – the [Equality] Act has been interpreted by the highest court in the land, and it has been clarified. The rights remain extant as they always were when Parliament… passed the Equality Act.”
It took the Labour MP for North Warwickshire and Bedworth, Rachel Taylor, close to eight minutes to establish that it was not – under the law – possible to have a women’s only walking club that included trans women.
“I think I’m clear on your answer that if I want to set up a women’s walking association that excludes cis [non-trans] men, then I cannot include transgender women. Is that what you’ve said?” Falkner nodded in reply. During the exchange, Owen chimed in: “How could you tell, and how could Rachel tell whether I was a cisgendered woman or whether I was a trans woman, can you tell Baroness Faulkner by looking at me?”
“I could make an informed judgment,” the EHRC chair replied. “Society is not based on policing outside toilets,” she continued. “Society is based on trust”, Falkner explained, “on trust that in a workplace which provides single-sex toilets, that the people who will use those toilets will generally… abide by that.”
Responding to a question from Rosie Duffield about intimidation and bullying of EHRC members, Baroness Falkner’s voice faltered with emotion. “What bothers me more than my own personal security is that our staff should be able to come to a place and work in safety”, she told the committee, “and that has been somewhat lacking in the last several years.” She began to share a “reflection” – comparing the “dignified, respectful” responses of women who felt their rights had been threatened, to those advocating for trans rights. Women, Falkner said, had frequently used the “last resort of a tribunal or a court to pursue justice for themselves or their loved ones.” Yet, while appreciating that trans people were a vulnerable group, “the level of agitation they can cause in terms of personal attacks, libellous attacks, defamation,” and attacks on EHRC staff’s family members stood in stark contrast. “It has got to stop”, Falkner said. During this impassioned statement, Owen cut her off, to audible gasps and shocked sighs of “no” from some of those listening. The committee chair wanted to make sure there “wasn’t an inadvertent, unwitting tarnishing of all campaigners and activists”.
Kishwer Falkner leaves the EHRC in November, as her (already extended) term ends. The government kept her in post for another year to provide stability in leadership of the equalities regulator. But the signs are that her preferred successor, Mary-Ann Stephenson, will receive no more civil a response from Owen’s committee when they question her later in the year.
Immediately after her candidature was announced on 5 June, trans rights activists began scouring for evidence of potential unsavoury views and behaviour. “Dr Stephenson has a reputation for transphobia,” one Reddit user wrote, urging others to help compile a list of alleged misdemeanors. “Please don’t put vague things… it needs to be along the lines of “she did transphobic thing X at date Y in location Z.”
So far, the offences Stephenson has apparently committed include signing a couple of open letters in the Guardian in 2015 and 2017, defending the right to free speech and saying that women should not face violence for voicing their opinions, and in 2020 appearing on a podcast for feminist charity FiLiA and at a Woman’s Place UK conference (where she spoke about women in the workplace). Stephenson also appears to have donated to lesbian barrister Allison Bailey’s employment tribunal, in which she accused her chambers of discriminating against her for holding gender-critical beliefs, in part because it was unfairly influenced by Stonewall, Europe’s largest LGBTQ charity. Even well-known trans campaigners have questioned whether this amounts to anything. “There is no question that FiLiA has strong gender-critical tendencies, as had WPUK,” Steph Richards from TransLucent commented. “However, FiLiA is a genuine feminist group with a wide range of campaigns. Likewise, the now-defunct WPUK was not a single-issue organisation… neither FiLiA nor WPUK are/were single-issue organisations dedicated to removing the human rights of trans people.”
Regardless, a co-ordinated letter-writing campaign is underway to launch objections to Stephenson taking up the EHRC role. The clerk of the Women and Equalities Select Committee has responded almost immediately to those who have written to object, even taking the time to do so on a weekend. “Thank you for writing to the Committee. The Committee notes your demands,” he said to one letter writer. “The Committee expects to cover the concerns you raise when it meets with the EHRC next week,” he replied to another – something that appeared to have been borne out by the session with Baroness Falkner. In a further reply, the clerk pointed out that while “select committees do not have power of veto in appointment hearings… if they really didn’t like a candidate, a failure of the committee to support the appointment could make the government further reflect on whether to take it forwards.”
To some, it might seem odd that anyone would object to Dr Mary-Ann Stephenson’s candidature. She has impeccable credentials for the role: 30 years of experience working on equality and human rights issues within the UK and internationally, and a PhD in equality law. Before her current role as director of the Women’s Budget Group, she has been director of the Fawcett Society, chair of the Early Education and Childcare Coalition and a board member of Coventry Rape and Sexual Abuse Centre (CRASAC).
It will be up to Falkner’s successor to make sure, following the Supreme Court judgment, that the new code of practice for service providers who have duties under the Equality Act is followed. The consultation on it has already received 5,000 responses, with a couple of weeks left to run. Falkner and John Kirkpatrick, the CEO of the EHRC who gave evidence alongside her, insisted they were in the mood for listening. But one thing it would not result in is a challenge to the highest court in the land. “We are not going to issue a letter to government saying we think the Supreme Court has got this wrong and you need to establish a new Supreme Court,” Falkner made clear. “That’s not going to happen.”
As MP after MP demanded to know how the EHRC was planning to win back the trust of trans people, Baroness Falkner made perhaps the most prescient point of the hostile encounter. “I’m going to be slightly personal here,” she replied. The trans community, she said, supposedly had a great deal of trust in her predecessor, David Isaac, who had also been a chair of Stonewall. “Perhaps we have to recognise that when people are lobbyists or advocates for a particular cause, the cause that they represent generates greater trust from that particular group.” But it was the EHRC’s job to be impartial. “Trust is something that we all want, but it is a commodity which is built up through credibility, impartiality and fairness.” If trans people accepted that the EHRC’s job was to interpret the law of the land, then they will find the final code of practice is something they can trust, Falkner said.
The session ended where it began, with Falkner civil, the chair, Sarah Owen otherwise. “We’re hoping that the settlement of this issue by the Supreme Court will lead to a calming down of the atmosphere,” Falkner said. Many share that hope. But committee hearings like this will certainly not help.
[See more: Inside the SNP civil war]
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